Estate of Maiola v Velazco

[*1] Estate of Maiola v Velazco 2006 NY Slip Op 51300(U) [12 Misc 3d 1178(A)] Decided on June 15, 2006 Supreme Court, Orange County Lubell, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through July 31, 2006; it will not be published in the printed Official Reports.

Decided on June 15, 2006
Supreme Court, Orange County

Estate of Richard Maiola, Sr., Diane Maiola, et al., Plaintiffs,

against

Mariano Velazco, et al., Defendants.



Estate of Steven F. Scholl, et al., Plaintiffs,

against

Mariano Velazsco, et al., Defendants.



4472/03

Lewis Jay Lubell, J.

This is an action in personal injury and wrongful death stemming from a boating accident [*2]which occurred on Greenwood Lake on July 7, 2001 at approximately 9:00 p.m. wherein the two plaintiffs decedents, Richard Maiola, Sr. and Steven Scholl were killed when the boat in which they were riding collided with a boat in which defendants Velazco and Linekin were riding. Plaintiffs allege that Velazco and Linekin were visibly intoxicated at the time of the accident and that both Velazco and Linekin were driving their boat at different times prior to the accident. Plaintiffs also allege that the Castle Tavern defendants (Sterling Forest Castle Tavern, Ltd., Sterling Forest Castle Marina, Ltd., Sterling Forest Castle Realty, Ltd., The Castle Restaurant & Marina and Sterling Forest Castle Tavern), in violation of the Alcoholic Beverage Control Law § 65 and General Obligations Law §11-101, improperly served alcoholic beverages to Velazco and Linekin approximately 45 minutes before the accident and should have recognized that they were visibly intoxicated. Plaintiffs further allege that the defendants' intoxication was the proximate cause of the boating accident.

Defendants dispute the fact that Linekin and Velazco were visibly intoxicated at the time of the accident and also dispute that said individuals were served alcoholic beverages by the Castle Tavern defendants while in such a state. The sole issue for determination, however, is whether the Castle Tavern defendants and the employees thereof sued in their individual capacities, are entitled to summary judgment.

In opposition to the defendants' motions for summary judgment, plaintiffs interpose the affidavit of Richard Saferstein, PhD, a forensic scientist, who opined to a reasonable degree of scientific certainty, that defendant Linekin's blood alcohol level would have exceeded 0.10% after 7 p.m., and that the level of 0.15% at 9:00 p.m would have been caused by the consumption of approximately 14 twelve ounce light beers from 3:00 p.m. up to the time of the accident. Dr. Saferstein's affidavit is based not only upon the scientific data he obtained from the results of the autopsy performed on Mr. Linekin, but also from his experience, personal research and authoring of articles on the effects of alcohol and the operation of motor vehicles. Dr. Saferstein's qualifications to render this opinion have not been challenged. Moreover, Dr. Saferstein refers in his report to the affidavits of John T. Moore, III and Debra Moore, whose affidavits (submitted by plaintiffs) clearly state that Messrs. Linekin and Velazco appeared to be visibly intoxicated at approximately 9:00 p.m. just prior to the accident based upon their loud screaming and boisterous behavior.

Summary judgment is a drastic remedy that "should not be granted where there is any doubt as to the existence of a triable issue" (citations omitted). In its analysis of such a motion, a court must construe the facts in a light most favorable to the nonmoving party so as not to deprive that person his or her day in court (citations omitted). Russell v A. Barton Hepburn Hosp., 154 AD2d 796, 797 (3rd Dept. 1989); See also, Mascots v Oarlock, 23 AD2d 943, 944 (3rd Dept., 1965).

While summary judgment is an available remedy in some cases, its dire effects preclude its use except in "unusually clear" instances. Stone v Aetna Life Ins. Co., 178 Misc. 23, 25 (Sup. Ct., New York County,1941). "A remedy which precludes a litigant from presenting his evidence for consideration by a jury, or even a judge, is necessarily one which should be used sparingly, for its mere existence tends to alter our jurisprudential concept of a day in court.'" Danger v Zea, 45 Misc 2d 93, 94, (Sup. Ct., Albany County, 1965), aff'd 26 AD2d 729 (3rd Dept.1966). Given the fact that summary judgment is the procedural equivalent of a trial, granting summary judgment requires that no material or triable issues of fact exist. When doubt exists or where an [*3]issue is arguable, or "fairly debatable," summary judgment must be denied. Bayesian v HF Horn, 21 AD2d 714 (1st Dept. 1964); Jones v County of Herkimer, 51 Misc 2d 130, 135 (Sup. Ct., Herkimer County, 1966); Town of Preble v Song Mountain, Inc., 62 Misc 2d 353, 355 (Sup. Ct., Courtland County, 1970); See also, Sillman v Twentieth Century-Fox Film Corporation, 3 NY2d 395, 404 (1957). The drastic remedy of summary judgment is rarely granted in negligence cases since the very question of whether the defendant's conduct was indeed negligent is a jury question except in the most glaring cases. See, Johannsdottir v Kohn, 90 AD2d 842 (2nd Dept. 1982).

Courts are not authorized to try issues in a case, but rather to determine whether there is an issue to be tried. Esteve v Abad, 271 AD2d 725, 727 (1st Dept. 1947). "Issue-finding, rather than issue-determination, is the key to the procedure. If and when the court reaches the conclusion that a genuine and substantial issue of fact is presented, such determination requires the denial of the application for summary judgment." Id.; Sillman, 3 NY2d at 404.

According to the Court of Appeals, "the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case [citations omitted]. Failure to make such a showing requires the denial of the motion, regardless of the sufficiency of the opposing papers [citations omitted]." Winegrad v New York University Medical Center, 64 NY2d 851, 853 (1985); Ayotte v Gervasio, 81 NY2d 1062, 1063 (1993); Finkelstein v Cornell University Medical College, 269 AD2d 114, 117 (1st Dept. 2000).

It is well established that "[t]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case." Winegrad v New York University Medical Center, 64 NY2d 851, 853 (1985); Ayotte v Gervasio, 81 NY2d 1062, 1063 (1993); Finkelstein v Cornell University Medical College, 269 AD2d 114, 117 (1st Dept. 2000). The moving party must affirmatively demonstrate the merits of its claim or defense, and cannot obtain summary judgment merely by "pointing to gaps in its opponent's proof." Kajfasz v Wal-Mart Stores, Inc., 288 AD2d 902, 902 (4th Dept. 2001); Dodge v City of Hornell Industrial Development Agency, 286 AD2d 902, 903 (4th Dept. 2001); Frank v Price Chopper Operating Co., Inc., 275 AD2d 940 (4th Dept. 2000).

Alcoholic Beverage Control Law § 65 states: No person shall sell, deliver or give away or cause or permit or procure to be sold, delivered or given away any alcoholic beverages to 1. Any person, actually or apparently, under the age of twenty-one years; 2. Any visibly intoxicated person; 3. Any habitual drunkard known to be such to the person authorized to dispense any alcoholic beverages.

Additionally, General Obligations Law § 11-101 states in pertinent part that: 1. Any person who shall be injured in person, property, means of support, or otherwise by any intoxicated person, or by reason of [*4]the intoxication of any person, whether resulting in his death or not, shall have a right of action against any person who shall, by unlawful selling to or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication; and in any such action such person shall have a right to recover actual and exemplary damages. 2. In case of the death of either party, the action or right of action given by this section shall survive to or against his or her executor or administrator, and the amount so recovered by either a husband, wife or child shall be his or her sole and separate property. 3. Such action may be brought in any court of competent jurisdiction.

In analyzing the pertinent law, the Court is guided by the principles articulated in Romano v Stanley, 90 NY2d 444 (1997). The Court of Appeals held that an expert's affidavit alone concerning a person's blood and urine alcohol counts will not suffice to defeat a motion for summary judgment, since such conclusions would be considered mere speculation. See, Id. at 451-452. The Court further held that the qualifications of the expert, namely a clinical forensic pathologist who specialized in the performance of autopsies, is not an expert in determining the manifestations of alcohol in live individuals. More would have to be presented in order to defeat such a motion such as evidence that the expert's personal knowledge acquired through his own practice and studies or to other literature which provides technical support for the conclusions at which he arrived. See, Id. at 452.

Plaintiffs rely upon Adamy v Ziriakus, 92 NY2d 396 (1998) which addresses the issue of the sufficiency of evidence in a Dram Shop case to support a jury's finding of negligence. In the first place, there is a different standard to be applied to overturning a jury's verdict than there is on a motion for summary judgment. That being said, the principles articulated in Adamy are applicable to the instant case insofar as the Court of Appeals made specific reference to the fact that the evidence submitted in support of plaintiff's case was more than mere expert testimony on intoxication. The plaintiff presented evidence from police officers who personally observed the defendant to be visibly intoxicated at the time of the accident. The Court of Appeals held that the expert's testimony coupled with that of the police officers provided a sufficient basis upon which a jury could determine that the defendant was visibly intoxicated, thus triggering the Dram Shop liability provisions. See, Adamy, 92 NY2d at 402-403.

In the instant case, Dr. Saferstein is not a forensic pathologist as was the expert in Romano. Dr. Saferstein is a forensic scientist, whose uncontroverted qualifications and experience include his personal authoring of articles pertaining to the effects of alcohol on live individuals. While Dr. Safertstein's techniques are similar to those used by the Romano expert, his conclusions are based upon his personal knowledge acquired through practice and through literature he wrote and studied. Moreover, Dr. Saferstein's conclusions are also based upon the affidavits of the Moores who personally observed Linekin and Velazco and opined that they were visibly intoxicated from their behavior. As such, Dr. Saferstein's conclusions may not be [*5]considered speculative or conclusory as a matter of law. Plaintiffs did not present solely the affidavit of an expert. They presented eyewitness testimony of Linekin's and Velazco's alleged intoxication creating an issue of fact which is not ripe for summary determination. Furthermore, defendants failed to come forward with any contradictory expert evidence. Therefore, defendants' motion for summary judgment as to Castle Tavern defendants must be denied on the Dram Shop causes of action. Additionally, defendants' proposition that the Alcoholic Beverage Control Law § 65 fails to provide a plaintiff a private right of action is actually misplaced. According to the Court of Appeals in Mitchell v Shoals, Inc., 19 NY2d 338 (1967): Although the statute [Alcoholic Beverage Control Law § 65] -its forerunner goes as far back as 1873 (L.1873, ch. 646; see Note, 8 Syracuse L.Rev. 252)-does not give the inebriated person a cause of action if he is himself injured (see Moyer v. Lo Jim Cafe, 19 AD2d 523, 240 NYS2d 277,affd. 14 NY2d 792, 251 NYS2d 30, 200 NE2d 212; Scatorchia v. Caputo, 263 App.Div. 304, 32 NYS2d 532), it does entitle any one else injured by reason of the intoxication' of such person to recover damages from the party dispensing the liquor. There is no justification, either in the language of the legislation or in its history, for exonerating the latter simply because he had also served, and brought about the of, the third person who was hurt. As long as the latter does not himself cause or procure the intoxication of the other, there is no basis, under the statute, for denying him a recovery from the party unlawfully purveying the liquor.

Mitchell, 19 NY2d at 340.

In the instant case, the plaintiffs had nothing to do with procuring the alcohol for the defendants nor did they cause Linekin's or Velazco's intoxication. As such, the law does permit them a means of recovery. Therefore, the branch of the motion seeking summary judgment as to the Alcoholic Beverages Control Law § 65 is denied.

The defendants' motion also seeks summary judgment on the issue of the employee defendants of Castle Tavern, i.e. Joanne Stropoli, Laura Clune and Kristi Klune, being sued in their individual capacities for allegedly serving alcoholic beverages to visibly intoxicated people. Plaintiffs interpose no opposition to this branch of defendants' motion. As expressed by the Second Department, employers are vicariously liable for torts of their employees even where the employee's conduct is intentional so long as the acts were committed while acting within the scope of employment and in furtherance of the employer's business. See, Carnegie v J.P. Phillips, Inc., 28 AD3d 599 (2nd Dept. 2006). In the instant case, the plaintiffs have a viable defendants, Castle Tavern defendants, who employed these individuals who allegedly served alcohol to visibly intoxicated individuals. There is no law cited by plaintiffs to demonstrate that these employees are liable in their individual capacities to the plaintiffs since their conduct was in furtherance of their employer's business. Thus, the branch of defendants' motion seeking summary judgment as to the employee defendants Joanne Stropoli, Laura Clune and Kristi Klune is granted.

Defendants also seek summary judgment as to Castle Tavern on the issue of its negligent hiring and supervision of the employee defendants. In order for a plaintiff to demonstrate such a [*6]claim, a plaintiff must proffer evidence that the employer knew or should have known of the employee's propensity for conduct resulting in the injury claimed. See, Carnegie, supra ; State Farm Insurance Co. v Central Parking Systems, Inc., 18 AD3d 859, 860 (2nd Dept. 2005). In the instant case, defendants made a sufficient showing unopposed by plaintiffs that Castle Tavern defendants lacked the requisite knowledge for plaintiffs to recover under this theory, and therefore the branch of the motion seeking summary judgment for negligent hiring and supervision is granted.

Plaintiffs are also in agreement with defendants that there is no common law right of action against tavern owners for the service of intoxicating beverages to visibly intoxicated individuals. Plaintiffs agree and defendants assert that this right is statutorily imposed by Alcoholic Beverage Control Law § 65 and General Obligations Law § 11-101. Therefore, to the extent that plaintiffs plead a common law negligence cause of action against the defendants under a Dram Shop theory, that is dismissed and defendants' motion for summary judgment on that theory is granted.

The parties are directed to appear on July 11, 2006 at 9:00 a.m. for a conference on this matter at the Orange County Government Center, Courtroom No.4 and for jury selection on October 2, 2006 at 9:00 a.m. at the Orange County Government Center, Courtroom #

4.

The foregoing constitutes the decision and order of the Court.

Dated: June 15, 2006 E N T E R

Goshen, New York

__________________________

HON. LEWIS J. LUBELL,

J.S.C.

TO:

Scott E. Miller, Esq.

One Battery Park Plaza - 28th Floor

New York, New York 10004

Breslin & Breslin

41 Main Street

Hackensack, New Jersey 07601

The Lynch Law Firm

PO Box 1014

Highland Mills, New York 10930

Duncan McCarthy

PO Box 1373

Greenwood Lake, New York 10925

Mariano Velazco

PO Box 112

Washingtonville, New York 10992 [*7]